When an employee complaining about harassment tells a supervisor, “Let’s keep it between us for now.”

Well, the opposite holds true when an employee complains to a supervisor about workplace discrimination.

You’ll see what I mean when we go back to yesterday’s post. That’s the one about the “unofficial” office happy hour that officially landed the employer in federal court defending a hostile work environment claim.

We learned from Echevarria v. Utitec, Inc. (opinion here) that, when an employer is on notice of harassment in the workplace, it can’t ignore other alleged harassment involving the same two individuals that may have occurred outside the workplace and off the clock.

Well, one of the other interesting things about the Echevarria case is that the plaintiff asked her supervisor not to report the alleged harassment because the plaintiff wanted to handle it herself. I’m like this. But, here’s what the court had to say about that situation:

The law will not presume in every case that harassed members of Title VII’s protected classes do not know what is best for themselves and cannot make reasonable decisions to delay—at least for a time—pursuing harassment claims, perhaps for privacy or emotional reasons, until they are ready to do so….A supervisor does not necessarily breach his duty to an employee who asks for confidentiality by failing to take action, unless there is, for example, evidence of serious physical or psychological harm that would have occurred if the employer did not act forthwith or in the case where a supervisor or co-worker is harassing a number of employees, and one employee asks the company not to take action.

Notwithstanding, the court noted that the foregoing did not apply to the specific facts of Echevarria. Indeed, Ms. Echevarria’ssupervisor did inform the company about the incident at the happy hour and Ms. Echevarria later complained as well. Plus, the court noted that the employer had a mandatory reporting policy.

All that aside, I can’t imagine a situation in which the quoted language above should ever apply to any complaint of sexual harassment in any workplace in America. With newspaper headlines from the past several months painting a nasty picture of companies ignoring complaints of harassment, or otherwise fostering a culture of harassment at work, we need to train our employees and managers that no one should have to act alone to improve their working conditions. That results not just in bad lawsuits, but good employees leaving when they ultimately conclude that going it alone isn’t worth it.

So, when a supervisor receives a complaint of harassment with the tag-line, “please don’t tell anyone,” that supervisor should remind that employee that he or she does not need to go it alone. And, indeed the employee won’t have to resolve the problem alone because the supervisor must tell Human Resources, or whoever is tasked with addressing complaints of workplace harassment.

CONTRIBUTOR:

Eric B. Meyer

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